Conditions of Employment

Jan du Toit


We frequently receive questions from employers regarding the non-payment of employees for days that they were absent from work without leave. Based on the provisions in section 34 of the BCEA there seems to be a misguided perception that employees must receive their full salaries at the end of the month regardless whether or not they were actually at work.


A very good example would be if an employee went on sick leave and upon return did not hand in a sick note as required by section 23 of the Basic Conditions of Employment Act; or the employee simply just did not report for duty and could not furnish any valid reasons for the unauthorized absence on that specific day.


In terms of section 20 (6) of the BCEA an employer must grant an employee, at the written request of the employee, annual leave during a period of unpaid leave. But what happens if the employee does not have any annual leave available, do we pay the employee for that day or do we reduce the employee's salary? The first clue should be that the BCEA actually makes mention of unpaid leave but let us first look at section 34 of the BCEA that deals with deductions from employee's remuneration.

 

Section 34:


(1) An employer may not make any deduction from an employee's remuneration unless—


(a)
subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or

(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

    

Based on this section of the act employers assume that payment may not be withheld from an employee that did not work. This is not true. Under common law, statute law and the employment contract there is an obligation on the employee to be at work and to actually work in order to be remunerated.

  

Let us look at Chapter 1 of the BCEA - Definitions, purpose and application of this act. In this chapter;

  • remuneration means "any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the state".
  • Wages means "the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week".
  • an employee is described as "any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration".

 

In the Labour Relations Act "working hours" is described as "those hours during which an employee is obliged to work" and the Encarta English dictionary describes the word "work" as "paid job - paid employment at the job" and "time spent at place of employment". The Oxford dictionary defines "work" as "activity involving mental or physical effort done in order to achieve a result. Such activity as a means of earning income."


From the above it is abundantly clear that an employee is expected to be at work and to actually work in order to be remunerated. The fact that the employee was paid less than what he or she would ordinarily receive at the end of a week or month does not mean that a deduction was made from the employee's remuneration. The employee was merely paid for work done and not paid for work not done, resulting in a lesser salary.


The BCEA makes provision for the remuneration of employees in certain events when they are unable to work, such as sick leave, family responsibility leave, public holidays and annual leave. Section 23 of the act is very clear in that the employee must submit proof of incapacity to the employer upon his or her return to work. Failure to do so allows the employer to not pay an employee from his or her sick leave entitlement and to consider such a period of absence as unpaid if alternative entitlements such as annual leave is exhausted.

 

Employers are advised to act against employees that stay away from work without authorization and those that do not submit medical certificates when expected to do so in terms of the law and company policies. The fact that the employee is not paid for such unauthorized absenteeism is not punitive of nature and the employer will be within his right to issue a warning for such offences.


For further information, contact Jan du Toit on [email protected]

 

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